Revised OSHA Recordkeeping Regulation

The Occupational Safety and Health Administration (OSHA) has amended its recordkeeping regulation, 29 CFR Part 1904, to require many employers to submit OSHA 300 Logs, OSHA 301 forms, and OSHA 300A summaries to the agency electronically. The amendments, which will be published in the Federal Register on May 12, also include provisions designed to prevent employers from retaliating against employees for reporting work-related injuries or illnesses. To abate alleged violations of these provisions, OSHA may order employers to reinstate employees or pay them back pay. The changes will allow OSHA and other stakeholders—including labor unions and plaintiffs’ attorneys—to access injury and illness data and also create a new cause of action for employees who claim their employer retaliated against them for reporting a work-related injury or illness. The final regulation also raises serious questions regarding whether OSHA has the authority under the Occupational Safety and Health Act to enact these changes.

Electronic Submission of Injury and Illness Data

Effective January 1, 2017, every establishment with 250 or more employees will be required to submit OSHA 300 Logs, 301 Forms, and 300A summaries electronically every year by uploading them into a database maintained by OSHA. An “establishment” is a single physical location where work is performed. For construction and similar operations where employees do not work at a single location, the establishment is typically the main or branch office, a terminal, or similar location.

OSHA will post the OSHA 300 Logs and 301 Forms for each establishment on its website. OSHA will redact the names of employees and other identifying information before posting. The electronic system will allow OSHA, as well as any member of the public, to access the injury and illness data of any establishment that must report electronically.

The revised regulation also requires establishments in industries listed in Appendix A that have 20 or more employees to submit OSHA 300A summaries electronically. Appendix A is lengthy and includes broad categories such as construction (NAICS 23), manufacturing (NAICS 31-33), utilities (NAICS 22), and agriculture (NAICS 11).

The new electronic submission requirements will be phased in with the website going “live” in February 2017. Covered employers will be required to submit electronically beginning this year. Specifically, on July 1, 2017, employers must electronically submit their 300A summaries for covered establishments. On July 1, 2018, employers must electronically submit their 300 Logs, 301 Forms, and 300A summaries for covered establishments. Beginning in 2019, the deadline will change from July 1 of each year to March 2 of each year. The final rule anticipates that states with their own OSHA plans will implement systems that meet these deadlines.

Anti-retaliation Protections

The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions became effective August 10, 2016.

How Does This Impact Your Company

The new “Enhanced” Injury reporting could potentially cause OSHA to cast their regulatory net towards your company. This is especially true if your Recordable Incident Rate (RIR) or your Days Away, Restricted or Transfer (DART) Incident Rate is considerably higher than the industry average for your North American Industry Classification System (NAICS) code. Now, more than ever, it is critical that employers clearly understand the nuances of OSHA’s Recordkeeping regulations to ensure that only those injuries that are truly recordable end up on their OSHA 300 Log, to avoid unnecessarily recording incidents on their OSHA 300 Logs and to minimize the potential of an OSHA regulatory inspection.